Nearly $5 billion in life-saving foreign aid will remain frozen for now even though Congress already approved it for spending, according to an order the Supreme Court issued Friday.
The decision was split 6-3 with only Justices Sonia Sotomayor, Ketanji Brown Jackson and Elena Kagan dissenting. The order was unsigned, but notes the case was submitted to Chief Justice John Roberts “and by him referred to the court.”
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The roughly $5 billion is just a sliver of the $30 billion in foreign aid assistance that Congress has approved for spending over the next few years.
“At this early stage,” the order briefly notes, the Trump administration had sufficiently shown that it could not be forced to relinquish its grip over the funds.
Why? Well, according to the terse decision, “the asserted harms to the Executive’s conduct of foreign affairs appear to outweigh the potential harm faced by respondents.”
In other words: The president’s power matters more — for now.
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“This order should not be read as a final determination on the merits,” the unsigned order states.
This moment has been a long time coming: In January, shortly after the president issued anexecutive order stating that foreign assistance shouldn’t be issued in any way not “fully aligned” with his foreign policy preferences, Secretary of State Marco Rubioannounced that all foreign aid funded through the State Department would be put on hold.
Nonprofit groups, including the AIDS Vaccine Advocacy Coalition and the Journalism Development Network, sued and won a short-term victory: Funds owed to contractors of the U.S. Agency for International Development, or USAID, for work that had already been completedmust be paid, U.S. District Judge Amir Ali ruled.
But Trump balked at Ali’s ruling,appealing it to the Supreme Court. Ultimately, the justicessplit 5-4 to keep Ali’s order in place — with a catch. The case would return to the lower court, where Ali would need to assess exactly what financial obligations the administration still had to fulfill.
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When Ali got the case back in March, he ruled that Trump’s freeze was likely illegal and directed the administration to free up all aid approved by Congress. Around that time, the matter was seemingly made moot when Rubio announced that some 83% of USAID programs had been terminated anyway.
Meanwhile, Trump fast-tracked an appeal to a partial panel of judges at the U.S. Court of Appeals in Washington, D.C. Three judges heard the case and vacated part of Ali’s order in August. Trump, theyruled, could suspend or altogether kill congressionally approved aid, and further, the three-judge panel found that the groups who sued didn’t have standing to bring the case in the first place. Only the Government Accountability Office did, the panel wrote. Eventually, the three-judge panel revised its ruling and the matter went back to Ali.
On Aug. 28, Trump issued a notice to Speaker Mike Johnson (R-La.) that he was intent on issuing apocket rescission, also known as a pocket veto, over the funds. Trump proposed that $4.9 billion for USAID, already approved by lawmakers in 2024, should not be spent before the fiscal year-end deadline of Sept. 30. While pocket vetoes are permitted under theImpound Control Act of 1974, Congress must also approve that rescission for funds to be slashed or released.
By law, Congress must respond to pocket vetoes within 45 days. But with Trump’s notice only arriving on Aug. 28 and challenges in the courts ongoing, Trump’s maneuver ultimately amounted to a work-around of Congress’ legislative powers.
When Ali told the administration in September that the freeze was likely illegal and that the government must spend the $4.9 billion for USAID as well as another $6 million that had been earmarked for HIV and AIDS programs, the judge was careful with his ruling. Trump, he wrote, has “significant discretion” on how to spend the money. But, Ali said, Trump had “no discretion” as to whether funds should be spent at all. That was up to Congress.
Trump again went to the conservative majority on the Supreme Court for help.
Pocket vetoes are rarely used by presidents. President Jimmy Carter was the last to use one in July 1977, when he proposed a cut of nearly $21 million for foreign military sales, or the transfer of arms and other defense equipment, before the end of that fiscal year. (AsLawfare noted in a report this August, Carter said the cut was necessary because the budget for foreign military sales had placed an “increased reliance” on loans instead of direct credit and the $21 million was, in effect, too much money in the pot when the $2 million already approved by Congress would suffice. As it turned out, when lawmakers probed Carter’s claims, they ended upagreeing with him.)
In her dissent, Justice Kagan said deciding the question over whether or not to freeze the funds had only ever been dealt with by courts “in passing” and that they had now entered “uncharted territory” where “the stakes are high.”
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“At issue is the allocation of power between the Executive and Congress over the expenditure of public monies,” she wrote.
And yet, here the court was once again being forced to decide a complex issue through the emergency docket.
″[We] have had to consider this application on a short fuse—less than three weeks. We have done so with scant briefing, no oral argument, and no opportunity to deliberate in conference. Because of how this case came to us, we likewise do not have the benefit of a pertinent court of appeals decision, much less a set of decisions expressing different views. In a few weeks’ time—when we turn to our regular docket—we will decide cases of far less import with far more process and reflection,” Kagan wrote.
If Congress does not agree to spend funds before Sept. 30, they will otherwise not be available to spend at all.
That, Kagan wrote, is the effect of the majority’s decision Friday.
Trump had argued that the Impound Control Act actually precluded anyone from suing over the enforcement of appropriations laws.
But giving a brief history lesson, Kagan highlighted that, in fact, it was because President Richard Nixon had “waged war” with Congress and impounded dollars already approved by lawmakers that the law ever came to fruition.
There was a “fierce congressional reaction” to the president attempting to “substitute his own policy priorities for Congress’s,” she noted.
“But even before Congress could assert its prerogatives through legislation, suits brought by States, organizations, and individuals—more than 60 of them by Congress’s careful count—put the President on his back foot. As Congress knew, courts consistently rejected the President’s claim of constitutional power to impound monies, reasoning that the President has a duty to follow appropriations laws as he does any others,” she wrote.
Trump argues that if he is forced to unfreeze the funds, he’ll be thrown into unnecessary negotiations with foreign states and international organizations and would be forced to advocate against his own objectives.
“But that is just the price of living under a Constitution that gives Congress the power to make spending decisions through the enactment of appropriations laws,” Kagan wrote.
If the law requires funds to be spent and Congress hasn’t rescinded the cash, then the executive branch “must comply,” she added.
“It cannot be heard to complain, as it does here, that the laws clash with the President’s differing view of ‘American values’ and ‘American interests.’ That inconsistency, in other words, is not a cognizable harm, to be weighed in the equitable balance. It is merely a frustration any President must bear,” Kagan wrote.
This is a developing story. Please check back for updates.